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Date: 09-03-2021
Case Style:
United States of America v. RAUL TOPETE
Case Number: 3:05-CR-00257-SLB-HNJ-15
Judge: SHARON LOVELACE BLACKBURN
Court: UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Birmingham, AL - Criminal defense lawyer represented defendant with one count of money laundering and one count of conspiracy to possess with intent to distribute 1000 kilograms or more of marijuana and 5 kilograms or more of cocaine charge.
This matter comes before the court on a motion for compassionate release
filed pro se by Defendant Raul Topete. (Doc. 838).1
In his motion, Mr. Topete
seeks compassionate release because he states that he is at high risk from the
current COVID-19 pandemic based on his underlying health conditions. Although
Mr. Topete does not cite the statute directly in his initial motion, the court
construes the motion as seeking compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A). After reviewing the submissions of the parties, the court finds
that Mr. Topete has shown extraordinary and compelling reasons meriting
compassionate release under Section 3582(c)(1)(A). Thus, the court will grant
Mr. Topete’s motion.
1 Reference to a document number, [“Doc. ___”], refers to the number
assigned to each document as it is filed in the court’s record. Page number
citations refer to the page numbers assigned to the document by the court’s
CM/ECF electronic filing system.
FILED
2021 Mar-05 PM 03:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 3:05-cr-00257-SLB-HNJ Document 865 Filed 03/05/21 Page 1 of 24
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I. BACKGROUND
Mr. Topete, along with multiple codefendants, was involved in a wideranging drug conspiracy starting around 1999. (Doc. 618). In 2006, a jury
convicted Mr. Topete of one count of money laundering and one count of
conspiracy to possess with intent to distribute 1000 kilograms or more of
marijuana and 5 kilograms or more of cocaine. (Doc. 432, doc. 620). The court
originally sentenced Mr. Topete to a total of 324 months of imprisonment, a
sentence at the bottom of the applicable Sentencing Guideline range. (Doc. 620;
doc. 679 at 34, 58–9). At sentencing, the court considered varying downward from
the Sentencing Guidelines and only sentencing Mr. Topete to 20 years’
imprisonment because he did not have a criminal record; ultimately, however, the
court found that the 324-month minimum sentence under the Sentencing
Guidelines was reasonable based on factors set forth in 18 U.S.C. § 3553(a)
because Mr. Topete was part of a major drug conspiracy involving a large amount
of drugs. (Doc. 679 at 51–61).
The court later granted a motion to reduce Mr. Topete’s sentence based on
changes to the Sentencing Guidelines, so Mr. Topete is now serving a 262-month
sentence. (Doc. 814). However, Mr. Topete has an immigration detainer, so he
faces deportation proceedings and a possible deportation to Mexico upon his
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release from prison. (Doc. 859-11 at 8).2
Mr. Topete is incarcerated at CI McCrae. See https://www.bop.gov
/inmateloc/ (last visited March 5, 2021). According to information from the
Bureau of Prisons, CI McCrae has no active cases of COVID-19, 25 recovered
inmates, and 1 inmate death from COVID-19 as of March 5, 2021. See
https://www.bop.gov/coronavirus/ (last visited March 5, 2021). Mr. Topete has
served 15 years of his sentence—roughly 70% of his full term of imprisonment and
80% of his statutory term of imprisonment—and is currently scheduled for release
on March 11, 2024. (Doc. 859-11 at 1). He has had three disciplinary incidents
while incarcerated, but none of the incidents were violent and the most recent took
place in October of 2010. (Id.). He has also taken more than 20 educational
courses while incarcerated. (Id. at 1–2).
Mr. Topete is now 53 years old. (Doc. 852-1). During his time in prison,
Mr. Topete has developed type 2 diabetes. (Doc. 838; doc. 852-2). Mr. Topete’s
medical records also show that he is obese, suffers from hypertension, and likely
suffers from a previously undiagnosed chronic liver condition.3 Additionally, in
2 The court expresses no opinion on Mr. Topete’s immigration status, but his
prison records reveal that he has a detainer and faces possible deportation. (Doc.
859-11 at 7–8).
3 Dr. Orlando Turner provided a Declaration to Mr. Topete’s counsel
opining on Mr. Topete’s health based on Mr. Topete’s medical records and Dr.
Turner’s experience and research. (Doc. 859-7). Dr. Turner is a physician,
hospitalist, and infectious disease specialist at the University of Alabama at
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April of 2020, Mr. Topete contracted COVID-19 and had to go to the hospital
because the virus affected his heart. (Doc. 852-3). Mr. Topete’s medical records,
on their own, are unclear to a lay person regarding whether he suffered a heart
attack at that time or only had an episode of tachycardia (elevated heart rate); his
records appear to list an incident of a myocardial infarction (heart attack) along
with the tachycardia, but later records list only tachycardia and not a heart attack.
(Doc. 852-2 at 57; doc. 852-3). However, Dr. Turner, the physician who reviewed
Mr. Topete’s medical records, stated that Mr. Topete did have a “mild heart
attack.” (Doc. 859-7 at 11). When Mr. Topete went to the hospital for his
COVID-related cardiac incident, his physician prescribed a six-month course of
metoprolol to control Mr. Topete’s elevated heart rate. (Doc. 852-2; doc. 852-3).
Mr. Topete no longer has any COVID-19 symptoms or elevated heart rate, though
he still takes the metoprolol. (Doc. 852-2; doc. 852-3).
After contracting COVID-19, Mr. Topete requested compassionate release
from the warden at his correctional institution, but more than 30 days passed
without a response from the warden. (Doc. 859-10). So, Mr. Topete filed his
instant compassionate release motion with the court.
Birmingham Hospital. He has treated many COVID-19 patients and works on a
COVID-19 task force and a COVID-19 research committee. Based on Mr.
Topete’s medical records, including lab results, Dr. Turner identified the likelihood
of Mr. Topete having a previously undiagnosed chronic liver condition.
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II. STANDARD OF REVIEW
The court construes Mr. Topete’s motion for compassionate release as being
filed pursuant to 18 U.S.C. § 3582(c)(1)(A). Section 3582, as amended by the First
Step Act, states that courts generally cannot alter or modify a term of
imprisonment after its imposition, but the court can reduce an inmate’s term of
imprisonment upon a motion for sentence modification from the Bureau of Prisons
or from a prisoner, where the prisoner has exhausted administrative remedies. 18
U.S.C. § 3582(c)(1)(A). Prior to passage of the First Step Act, however, courts
could only reduce an inmate’s sentence under Section 3582(c)(1)(A) upon a
motion from the Director of the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A)
(effective November 2, 2002 to December 20, 2018). The First Step Act amended
Section 3582(c)(1)(A) to allow courts to also reduce a defendant’s term of
imprisonment upon a motion filed directly by the defendant, after the exhaustion of
administrative remedies. Section 603(b) of the First Step Act of 2018, Pub. L. 115
391, 132 Stat. 5194; 18 U.S.C. § 3582(c)(1)(A).
Upon a prisoner’s exhaustion of administrative remedies, Section
3582(c)(1)(A) allows a court to modify the prisoner’s sentence “after considering
the factors set forth in section 3553(a) to the extent that they are applicable” if the
court finds that “extraordinary and compelling reasons warrant such a reduction”
and finds that “such a reduction is consistent with applicable policy statements
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issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).
The relevant policy statement for Section 3582(c)(1)(A), found in U.S.S.G.
§ 1B1.13, states that, “[u]pon motion of the Director of the Bureau of Prisons
under 18 U.S.C § 3582(c)(1)(A), the court may reduce a term of imprisonment […]
if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that
they are applicable,” the court finds that (1) “extraordinary and compelling reasons
warrant the reduction” or that the defendant meets certain age-based requirements,
(2) the defendant is not a danger to the community, and (3) “[t]he reduction is
consistent with this policy statement.” U.S.S.G. § 1B1.13. The commentary to
U.S.S.G. § 1B1.13 provides a list of specific circumstances that qualify as
“extraordinary and compelling,” including medical conditions, age, and family
circumstances. U.S.S.G. § 1B1.13 cmt. 1(A)–(C). The list culminates in
subsection (D), a catchall provision entitled “other reasons,” which states that
extraordinary and compelling reasons exist where, “as determined by the Director
of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with, the reasons described in
subdivisions (A) through (C).” Id. at cmt. 1(D). Accordingly, the policy statement
limits extraordinary and compelling circumstances to those listed in the
commentary or determined by the Director of the Bureau of Prisons. Id. The
commentary for U.S.S.G. § 1B1.13 also includes a provision stating that a sentence
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reduction “under this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons […].” Id. at cmt. 4.
Some question exists concerning whether the policy statement as set forth in
U.S.S.G. § 1B1.13 actually applies to Section 3582(c)(1)(A) motions filed directly
by prisoners after the passage of the First Step Act. In its only published opinion
concerning a motion for compassionate release based on COVID-19 filed by a
prisoner, the Eleventh Circuit stated in a footnote that, in that particular case, “We
need not and do not reach the issue of whether the district court was required to
consider § 1B1.13.” United States v. Harris, No. 20-12023, 2021 WL 745262, at
*3 n. 2 (11th Cir. Feb. 26, 2021). The Eleventh Circuit has yet to issue a published
opinion on the question of what Sentencing Commission policy statements apply to
motions for compassionate release filed by prisoners rather than the Bureau of
Prisons. United States v. Gist, No. 20-13481, 2020 WL 7227282, at *2 n.2 (11th
Cir. Dec. 8, 2020) (unpublished) (noting that the Eleventh Circuit has recently held
oral argument implicating the issue but has not yet put forth a decision resolving
the applicability question). Further, the current unpublished opinions from the
Eleventh Circuit offer little clear guidance.
In one unpublished opinion, a panel of the Eleventh Circuit stated that the
Sentencing Commission had identified the circumstances listed in the commentary
to U.S.S.G. § 1B1.13 as “constituting ‘extraordinary and compelling reasons’”
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warranting relief, and affirmed the district court’s denial of a motion for
compassionate release because the prisoner’s situation did not fall under the
circumstances listed in the commentary. United States v. Wedgeworth, No. 20-
12316, 2020 WL 7389350, at *1–*2 (11th Cir. Dec. 16, 2020) (unpublished)
(citing U.S.S.G. § 1B1.13, cmt. 1). In a similar unpublished opinion, the court
stated that “[a] district court must find that a sentence reduction for extraordinary
and compelling reasons is consistent with policy statements issued by the
Sentencing Commission” and explained that U.S.S.G. § 1B1.13 provides
“examples of extraordinary and compelling reasons for a sentence reduction.”
United States v. Mantack, 833 F. App’x 819 (11th Cir. 2021). However, the Court
did not explicitly state in either case that any policy statement was applicable for
motions filed by prisoners or that no other circumstance could qualify as
“extraordinary and compelling.”
In another unpublished opinion, a different panel of the Eleventh Circuit
observed that “notably” the policy statement in U.S.S.G. § 1B1.13 “has not been
amended since the First Step Act was passed and refers only to a sentence
reduction upon a motion from the BOP Director.” Id. at *1. Other recent
unpublished opinions have not directly addressed the applicability of policy
statements to Section 3582(c)(1)(A) motions filed by prisoners. See, e.g., United
States v. Winner, 835 F. App’x 1002, 1003 (11th Cir. 2020) (unpublished); United
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States v. Rind, No. 20-12860, 2020 WL 7392878 (11th Cir. Dec. 17, 2020)
(unpublished); United States v. Boykin, No. 20-12111, 2021 WL 210705 (11th Cir.
Jan. 21, 2021) (unpublished). Accordingly, the current Eleventh Circuit
jurisprudence does not give a clear answer on the question of whether the
Sentencing Commission policy statement applies and binds the court where a
prisoner files a motion for compassionate release under Section 3582(c)(1)(A).
Considering the lack of binding precedent or clear direction from the
Eleventh Circuit, this court turns to the developing trend of jurisprudence in other
Circuits. In September of 2020, the Second Circuit held that the policy statement
in U.S.S.G. § 1B1.13 does not apply to Section 3582(c)(1)(A) motions filed by
prisoners, rather than the Bureau of Prisons, because the language of the policy
statement is clearly outdated and states explicitly in multiple places that it applies
upon motions filed by the Director of the Bureau of Prisons. United States v.
Brooker, 976 F.3d 228, 236 (2d Cir. 2020). Specifically, the Second Circuit
stated
we look also to Application Note 4, which says that “[a] reduction
under this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons pursuant to 18 U.S.C.
§ 3582(c)(1)(A).” U.S.S.G. § 1B1.13, n.4 (emphasis added). And we
conclude that after the First Step Act, this language must be read not
as a description of the former statute’s requirements, but as defining
the motions to which the policy statement applies. A sentence
reduction brought about not “upon motion by the Director of the
Bureau of Prisons” is not a reduction “under this policy statement.”
Id. In other words, if a compassionate release motion is not brought
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by the BOP Director, Guideline § 1B1.13 does not, by its own terms,
apply to it. Because Guideline § 1B1.13 is not “applicable” to
compassionate release motions brought by defendants, Application
Note 1(D) cannot constrain district courts’ discretion to consider
whether any reasons are extraordinary and compelling.
Id. (emphasis in original). Accordingly, the Second Circuit held that courts have
discretion “to consider the full slate of extraordinary and compelling reasons that
an imprisoned person might bring before them in motions for compassionate
release.” Id. at 237.
Now, the Fourth, Sixth, and Seventh Circuits have agreed with the Second
Circuit’s holding in Brooker and have held that there is no applicable Sentencing
Commission policy statement where a prisoner directly files a Section
3582(c)(1)(A) motion, such that courts may exercise discretion in determining
whether a prisoner has shown extraordinary and compelling circumstances
warranting compassionate release. United States v. McCoy, 981 F.3d 271, 281–83
(4th Cir. 2020); United States v. Jones, 980 F.3d 1098, 1109–11 (6th Cir. 2020);
United States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020). Currently, no
Circuit Court has clearly endorsed in a published opinion the opposite holding that
the policy statement in U.S.S.G. § 1B1.13 applies to Section 3582(c)(1)(A)
motions filed directly by prisoners and binds courts’ determination of
extraordinary and compelling circumstances.
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This court finds the reasoning of the Second, Fourth, Sixth, and Seventh
Circuits persuasive and notes that such reasoning appears to complement the
Eleventh Circuit’s recent observation in an unpublished opinion that the policy
statement in U.S.S.G. § 1B1.13 “notably” has not been updated since the passage
of the First Step Act and refers only to motions filed by the Director of the Bureau
of Prisons. Gist, No. 20-13481, 2020 WL 7227282, at *1. Further, reading the
policy statement as inapplicable and nonbinding does not mean that it cannot offer
guidance in determining extraordinary and compelling circumstances for Section
3582(c)(1)(A) motions filed by prisoners. See United States v. Thompson, 984
F.3d 431, 433 (5th Cir. 2021) (stating that, “[a]lthough not dispositive, the
commentary to the United States Sentencing Guidelines (“U.S.S.G.”) § 1B1.13
informs our analysis as to what reasons may be sufficiently ‘extraordinary and
compelling’ to merit compassionate release”). Thus, a finding that the policy
statement is not applicable and not binding does not necessarily conflict with the
Eleventh Circuit’s unpublished opinion in Wedgeworth and its reference to the
policy statement and commentary. See Wedgeworth, No. 20-12316, 2020 WL
7389350, at *1–*2.
The policy statement in U.S.S.G. § 1B1.13 begins “[u]pon motion of the
Director of the Bureau of Prisons” and the commentary states that a reduction in
sentence under U.S.S.G. § 1B1.13 “may only be granted upon a motion by the
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Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13 & cmt. 4. This court agrees
with the current published jurisprudence from the Circuit Courts that, therefore, the
policy statement applies only to motions filed by the Director of the Bureau of
Prisons and does not apply to Section 3582(c)(1)(A) motions filed directly by
prisoners after the passage of the First Step Act. See Brooker, 976 F.3d at 236; see
also McCoy, 981 F.3d at 281–83; Jones, 980 F.3d at 1109–11; Gunn, 980 F.3d at
1180–81. Therefore, courts are not constrained by U.S.S.G. § 1B1.13 and its
commentary when determining whether a prisoner has made the requisite showing
to qualify for compassionate release under Section 3582(c)(1)(A). See Brooker,
976 F.3d at 237.
III. DISCUSSION
In his motion for compassionate release, Mr. Topete asserts that he is in
extreme danger from the COVID-19 pandemic because of his diabetes—an
underlying condition identified by the CDC as a risk factor for contracting a severe
case of COVID-19—and because prison makes it impossible to practice the
disease-prevention measures recommended by the CDC. (Doc. 838).
Additionally, Mr. Topete asserts that he is in danger because his previous case of
COVID-19 attacked his heart and caused a heart attack. He notes that he had to go
to two different hospitals before he could receive treatment from a cardiologist for
the heart attack. Mr. Topete states that he is now scared for his life if he contracts
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the virus again. He adds that he has had a good history in prison and has no history
of violence. He also provides a release plan, should the court see fit to grant him
compassionate release. He states that he has places that he can live with his family
in the United States and in Mexico, should he be deported. (Id.).
The government filed a response in opposition to Mr. Topete’s motion for
compassionate release. (Doc. 852). The government argues that Mr. Topete failed
to show extraordinary and compelling reasons warranting compassionate release
because his medical records show that he did not actually have a heart attack when
he previously contracted COVID-19; he merely had an incident of tachycardia and
pneumonia. The government also states that Mr. Topete’s previous case of
COVID-19 was not terminal and proved that he can survive the virus. The
government argues that, despite having had the virus, Mr. Topete has recovered
and can still take care of himself within the prison environment. The government
asserts that, for all of those reasons, Mr. Topete’s health concerns do not qualify as
extraordinary and compelling reasons for compassionate release under the
applicable policy statements. Finally, the government argues that the court should
not grant Mr. Topete compassionate release because he presents a danger to the
community based on his previous involvement in the drug trade and because the
sentencing factors set forth in 18 U.S.C. § 3553(a) do not support his early release.
(Id.).
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With the assistance of counsel, Mr. Topete then filed a response in support
of his original motion seeking compassionate release. (Doc. 859). In his response,
Mr. Topete states that he suffers from four risk factors recognized by the CDC as
making someone more likely to contract a serious case of COVID-19: type 2
diabetes, obesity, a heart condition, and a newly-diagnosed liver condition found
only upon review of his medical records for this case. Mr. Topete argues that he is
at a high risk of contracting severe COVID-19 because of his underlying
conditions and because of his presence in a correctional institution, where there are
unique challenges to controlling the spread of the virus. He states that an outbreak
of COVID-19 at the prison could occur at any time and he would likely not be able
to get necessary medical assistance if he contracted the virus because of a lack of
nearby hospitals with ICU capacity. In support of his contentions, Mr. Topete
attaches a Declaration from Dr. Turner, in which Dr. Turner states that, based on
review of Mr. Topete’s records, Mr. Topete is very likely to experience severe or
fatal COVID-19 if he contracts the virus again. Dr. Turner also provides extensive
information about the difficulty of containing the spread of COVID-19 in prisons
and information showing that reinfection with COVID-19 is possible. Mr. Topete
argues that his health conditions qualify as extraordinary and compelling in part
because there is no applicable policy statement that confines the court’s
determination of what constitutes extraordinary and compelling circumstances in
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this case. (Id.).
Mr. Topete additionally asserts that the factors set forth in Section 3553(a)
also support a reduction in his sentence because he had no criminal history prior to
his conviction, he has had a good disciplinary record in prison, and he has taken
advantage of multiple educational opportunities in prison. (Doc. 859). He notes
that he will face deportation after his release, which creates an additional
consequence for his crime. To bolster his case, he requests that—assuming that he
is not deported—the court impose a term of home confinement for a term equal or
more than his remaining sentence as a condition of his release, which would allow
him to serve his full sentence without the health risks of incarceration. (Id.).
In this case, the government does not dispute that Mr. Topete has properly
exhausted his administrative remedies. (Doc. 852 at 3). Thus, the court can
consider the merits of Mr. Topete’s motion for sentence reduction. Because, as
discussed above, no Sentencing Commission policy statement applies to a Section
3582(c)(1)(A) motion like Mr. Topete’s filed directly by a prisoner, the court must
determine whether Mr. Topete has shown “extraordinary and compelling reasons”
warranting a reduction in sentence and whether consideration of the Section
3553(a) factors supports compassionate release. See Brooker, 976 F.3d 228, 236–
37; 18 U.S.C. § 3582(c)(1)(A).
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Here, extraordinary and compelling reasons warrant a reduction in Mr.
Topete’s sentence. Mr. Topete is 53 years old and his medical records, as
interpreted by Dr. Turner, show that he is obese, hypertensive, and has type 2
diabetes. (Doc. 852-2; doc. 852-3; doc. 859-7). Further, Dr. Turner opined that
Mr. Topete appeared to have a previously undiagnosed chronic liver condition and
“may very well have lasting cardiac complications” from his previous bout of
COVID-19. (Doc. 859-7 at 9–11). The CDC identifies type 2 diabetes and obesity
as underlying conditions that put people “at increased risk of severe illness” from
COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last visited March 5, 2021).
Additionally, the CDC notes that people who suffer from hypertension, liver
disease, or general cardiovascular problems “might” be at an increased risk of
severe illness from COVID-19. See id.; https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-conditions.html (last visited
March 5, 2021). The CDC has also stated that individuals aged 50-64, like Mr.
Topete, are 25 times more likely to be hospitalized with COVID-19 and 400 times
more likely to die from COVID-19 than individuals who are 5-17 years old. See
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigationsdiscovery/hospitalization-death-by-age.html (last visited March 5, 2021).
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Accordingly, Mr. Topete has a combination of multiple risk factors that put
him at an increased risk of having a particularly severe case of COVID-19 if he
contracts the virus again. In fact, after reviewing Mr. Topete’s medical records,
Dr. Turner specifically stated that Mr. Topete’s risk factors “make him extremely
high risk for a severe outcome, including death,” if he gets COVID-19 again; Dr.
Turner went on to conclude that, in his professional opinion, “Mr. Topete is
particularly vulnerable to infection” with COVID-19, and “[i]f reinfected, he is
highly likely to experience severe and potentially fatal COVID-19.” (Doc. 859-7
at 8, 12). Moreover, Dr. Turner stated that current evidence shows that people who
have previously gotten COVID-19 can get a second case, so Mr. Topete remains at
risk despite having previously contracted the virus. (Id. at 6); see also
https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (last
visited March 5, 2021) (stating that the CDC has seen reported cases of reinfection
with COVID-19). Dr. Turner based his conclusions not only on his review of Mr.
Topete’s records and his general medical experience, but also his specific expertise
dealing with COVID-19. (Doc. 859-7 at 2–3).
Additionally, Mr. Topete’s risks are further compounded by the lack of
available emergency care, should he get a severe case of COVID-19. When Mr.
Topete had his first COVID-related cardiac incident, he had to go to two different
hospitals to get effective treatment. (Doc. 838). Further, Mr. Topete has presented
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evidence that CI McCrae lacks easy access to hospitals likely to have the necessary
ICU capacity to deal with a severe case of COVID-19. (Doc. 859 at 14) (citing
Fred Schulte, Elizabeth Lucas, et. al., “Millions Of Older Americans Live In
Counties With No ICU Beds As Pandemic Intensifies,” KAISER HEALTH NEWS
(March 20, 2020), https://khn.org/news/as-coronavirus-spreads-widely-millions-ofolder-americans-live-in-counties-with-no-icu-beds/ (last visited March 5, 2021)
(providing a graphic of available ICU beds around the country)). This lack of easy
access to medical care increases the risk that, if Mr. Topete contracts COVID-19,
he will have a very severe or even fatal case of the virus.
Thus, Mr. Topete clearly is at increased risk of getting a severe or fatal case
of COVID-19 compared to the average American. The CDC has emphasized that
it is especially important for people at an increased risk of getting a serious case of
COVID-19 to protect themselves and has recommended that that they limit their
interactions with other people as much as possible and take precautions against
contracting the virus. See https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last visited March 5, 2021).
However, being in prison complicates Mr. Topete’s ability to take those
recommended precautions.
Dr. Turner states in his Declaration that prisons are ill-equipped to stop the
spread of COVID-19 because of a lack of effective tools to take precautions
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against the spread of the virus. (Doc. 859-7 at 6–8). Other research supports this
opinion, with one research letter stating that COVID-19 “represents a challenge to
prisons because of close confinement [and] limited access to personal protective
equipment.” Brendan Saloner, et. al, COVID-19 Cases and Deaths in Federal and
State Prisons, 324 JAMA 6 (2020); see also Patricia Davidson, et al., Open Letter
to Hon. Larry Hogan, Governor of Maryland, https://bioethics.jhu.edu/wpcontent/uploads/2019/10/Johns-Hopkins-faculty-letter-on-COVID-19-jails-andprisons.pdf (last visited March 5, 2021) (letter from numerous faculty members at
Johns Hopkins University schools of medicine, nursing, and public health stating
that prisons are associated with high transmission rates of infectious diseases and
opining that the close quarters, inability to social distance, and lack of resources for
sanitization in prisons heightens the COVID-19 risk). Obviously, being in prison
increases Mr. Topete’s risk from COVID-19.
Mr. Topete’s risk is somewhat mitigated by the fact that, as of January 12,
2021, CI McCrae where Mr. Topete is incarcerated is not reporting any active
cases of COVID-19. See https://www.bop.gov/coronavirus/ (last visited March 5,
2021). But multiple district courts have recognized that “the fact a prison has no
confirmed open cases today does not provide much assurance in the current
environment.” United States v. Tate, No. 17-CR-30037, 2020 WL 3791467, at *4
(C.D. Ill. July 7, 2020) (quoting United States v. Nicholson, No. 09-cr-00058-RPCase 3:05-cr-00257-SLB-HNJ Document 865 Filed 03/05/21 Page 19 of 24
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CFB (S.D. Iowa, June 6, 2020) and collecting cases from other districts). New
cases can come into prisons, even when the actual prisoners are isolated, through
staff coming in and out. See Timothy M. Smith, What’s Driving COVID-19 in
Prisons and Jails—and How To Fix It, https://www.ama-assn.org/deliveringcare/ethics/what-s-driving-covid-19-prisons-and-jails-and-how-fix-it (last visited
March 5, 2021) (article from the American Medical Association stating that jails
and prisons are not sealed off from the outside world, and thus from COVID-19
outbreaks, because of prison staff). If COVID-19 does come into the prison then,
“[d]ue to the conditions under which inmates live, they are at extreme risk of
infection once COVID-19 breaches prison walls.” United States v. Potts, No. 06-
80070-CR, 2020 WL 5540126, at *3 (S.D. Fla. Sept. 14, 2020).
Against the background of these facts, Mr. Topete has shown “extraordinary
and compelling reasons” warranting a reduction in his sentence. 18 U.S.C.
§ 3582(c)(1)(A). The combination of Mr. Topete’s age, various pre-existing
conditions, risk of exposure to the virus while in prison, and lack of reliable
hospital access suggests that he is at extraordinary risk of contracting a severe or
even fatal case of COVID-19. See (Doc. 859-7 at 8, 12). Therefore, his health
problems—when viewed through the lens of the current COVID-19 pandemic—
support a finding of “extraordinary and compelling” circumstances warranting
compassionate release. See 18 U.S.C. § 3582(c)(1)(A).
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Because Mr. Topete has shown extraordinary and compelling circumstances
warranting a sentence reduction, the court must examine the application of the
factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A). The court
finds that the Section 3553(a) factors support granting Mr. Topete compassionate
release. See 18 U.S.C. § 3582(c)(1)(A). Section 3553(a) requires courts to impose
sentences that are “sufficient, but not greater than necessary” for a person’s crimes,
taking into consideration a multitude of factors. Those factors include, among
other things, the history and characteristics of the defendant, the need for the
sentence imposed to reflect the seriousness of the offense and provide just
punishment, and the types of sentence available. 18 U.S.C. § 3553(a). Here, the
factors support a reduction in Mr. Topete’s sentence.
Perhaps the most relevant consideration in this case is that, even at the time
of Mr. Topete’s original sentencing, this court considered varying downward from
the Sentencing Guidelines and imposing a sentence of 20 years’ imprisonment
because of Mr. Topete’s lack of criminal history. (Doc. 679 at 51–61). The court
stated that a 27-year sentence was a “long, long prison sentence even for a major
drug dealer,” but especially for someone with no prior criminal record. (Id. at 52).
Ultimately, however, the court made a “hard decision” and, emphasizing that it
was “close,” determined that the 27-year minimum sentence under the Sentencing
Guidelines was reasonable because the quantity of drugs at issue was so large and
Case 3:05-cr-00257-SLB-HNJ Document 865 Filed 03/05/21 Page 21 of 24
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because the sentence reflected the seriousness of the offense, promoted respect for
the law, provided just punishment, and protected the public. (Id. at 58–60). Mr.
Topete’s behavior in prison and the imminent threat of COVID-19 change the
“close decision” that the court originally considered and support reducing Mr.
Topete’s sentence.
Mr. Topete’s history and characteristics weigh in favor of a sentence
reduction. This court strongly considered lowering Mr. Topete’s sentence based
on his lack of criminal history when his sentence was originally imposed; now, Mr.
Topete’s history provides even more reason for a lower sentence because of his
prison record, which reflects his efforts at rehabilitation. See Pepper v. United
States, 562 U.S. 476, 491 (2011) (stating that “evidence of postsentencing
rehabilitation may be highly relevant to several of the § 3553(a) factors that
Congress has expressly instructed district courts to consider at sentencing”). While
in prison, Mr. Topete has taken more than 20 educational courses, has not had a
disciplinary incident in a decade, and has never had a violent disciplinary incident
in prison. (Doc. 859-11 at 1–2). This continued positive history weighs in favor
of reducing his sentence.
Further, at Mr. Topete’s original sentencing, the court found that a minimum
guideline sentence was appropriate because it was sufficient but not greater than
necessary to reflect the seriousness of the offense, promote respect for law, and
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provide just punishment. But the punishment element of Mr. Topete’s sentence
has recently been ratcheted up as compared to when the sentence was initially
imposed; Mr. Topete’s sentence has become more harsh because of the risk of
fatality due to COVID-19 and his many risk factors. Therefore, the calculation of
what sentence is sufficient but not greater than necessary for his crimes has
changed. In light of that change, the court finds that a sentence of time served
correctly balances the seriousness of his offenses with the increased seriousness of
his punishment in light of COVID-19, such that his custodial sentence as currently
served still reflects the seriousness of the offense, promotes respect for law, and
provides just punishment for his crimes. See 18 U.S.C. § 3553(a). Therefore,
reducing Mr. Topete’s sentence to time served provides a sufficient but not
excessive sentence for his crimes. See 18 U.S.C. § 3553(a).
IV. CONCLUSION
Accordingly, the court finds that Mr. Topete has shown extraordinary and
compelling circumstances warranting a reduction in sentence and will grant Mr.
Topete’s motion for compassionate release. (Doc. 838). The court will reduce Mr.
Topete’s custodial sentence to time served. Mr. Topete shall be remanded to the
custody of the U.S. Marshall Service for surrender to an authorized Bureau of
Immigration and Customs Enforcement official for deportation proceedings in
accordance with the Immigration and Nationality Act. Assuming he avoids
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deportation, Mr. Topete will begin to serve his originally imposed five-year term
of supervised release, as set forth in his judgment. (Doc. 620).
Additionally, for the safety of Mr. Topete and the community, if he is not in
immigration custody he shall self-quarantine at his approved residence for 14 days
upon his release, except for necessary medical treatment and only upon prior notice
and approval by the probation officer, except in a true emergency.
DONE and ORDERED this 5th day of March, 2021.
SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE
Case 3:05-cr-00257-SLB-HNJ Document 865 Filed 03/05/21 Page 24 of 24
Outcome: Accordingly, the court finds that Mr. Topete has shown extraordinary and
compelling circumstances warranting a reduction in sentence and will grant Mr.
Topete’s motion for compassionate release. (Doc. 838). The court will reduce Mr.
Topete’s custodial sentence to time served. Mr. Topete shall be remanded to the
custody of the U.S. Marshall Service for surrender to an authorized Bureau of
Immigration and Customs Enforcement official for deportation proceedings in
accordance with the Immigration and Nationality Act. Assuming he avoids
deportation, Mr. Topete will begin to serve his originally imposed five-year term
of supervised release, as set forth in his judgment. (Doc. 620).
Additionally, for the safety of Mr. Topete and the community, if he is not in
immigration custody he shall self-quarantine at his approved residence for 14 days
upon his release, except for necessary medical treatment and only upon prior notice
and approval by the probation officer, except in a true emergency.
DONE and ORDERED this 5th day of March, 202
Plaintiff's Experts:
Defendant's Experts:
Comments: